Eternal India Encyclopedia

Eternal India encyclopedia

Ancient Concepts, Sciences & Systems

While he followed Mitakshara on matters of succession and stridhana he was more liberal in the recognition of the rights of women. The liberality of the Hindu law in Western India in favour of women is largely due to this great jurist. There are historical reasons for this work securing the posi- tion of the highest authority in the Gujarat area. Gujarat came under Muslim rule before its conquest by the Marathas. Conse- quently, Hindu social and legal systems had almost perished. The Vyavahara Mayukha, owing to its merit has become very popular in the western region. After the Maratha conquest of Gujarat, people who went and settled there took this work along with them. Owing to its intrinsic merit it was readily followed by the people and hence the Mayukha came to occupy the most important and unrivalled position in Gujarat. However in Gujarat as well as in Maharashtra, the law contained in Mitakshara and Mayukha are largely modified on the basis, of the customs among the backward castes. 6) Smriti Chandirka of Devanna Bhatta. This work deals mainly with the law of inheritance. Devanna Bhatta flourished about the end of the 12th century and compiled his work in the early period of the Vijayanagar empire. His work which was meant to supplement Mitakshara acquired a commanding position in South India. 7) Parashara Madhaviya This is a commentary on Parashara Smriti by Madhavacharya who was a scholar and Minister in the Vijayanagar Empire. This work was accepted as an authority in South India. 8) Saraswati Vilasa of Prataparudramahadeva This work was compiled by Prataparudramahadeva, a king of the Gajapati dynasty. He had his capital at Katakanagiri (modern Cuttack) in the State of Orissa. In this work he has dealt with procedural law as also substantive law. He quotes relevant texts from various smritis. He follows Mitakshara generally, though he does not hesitate to criticise it and to state his own views. The distinction of this work is that it is written by a ruler himself while normally jurists used to write commentaries or to make compila- tions. Some of the legislative provisions through which modifications in the Hindu law were brought about during the British rule were: 1. The Caste Disabilities Removable Act, 1850. Under this Act, the provisions of the ancient Hindu law which deprived the right of inheritance on loss of caste was abrogated. 2. The Hindu Widow’s Remarriage Act, 1856. Under this Act the remarriage of a Hindu widow in certain cases was declared legal. 3. The Native Converts Marriage Dissolution Act, 1866. This Act provided for obtaining dissolution of Hindu marriage by a Hindu on his being converted to Christianity under certain situations. 4. The Indian Majority Act, 1857. This Act fixed the age of majoFity at eighteen and made it applicable to Hindus except in matters of marriage, adoption and divorce. 5. Transfer of Property Act, 1882. This Act modified the law governing certain kinds of transfer of property. LEGISLATIVE CHANGES

6. The Guardian and Wards Act, 1890. This act was made appli- cable to Hindus to recognise guardians appointed by courts. 7. Indian Succession Act, 1925. This Act was made applicable to Hindus in so far as it related to testamentary succession. 8. The Hindu Inheritance (Removal of Disabilities ) Act, 1928. This Act put limitation on disabilities in the matter of inheri- tance. 9. The Hindu Law of Inheritance (Amendment) Act 1929. Under this Act, the right to inheritance was created in favour of son’s daughter, daughter’s daughter, sister and sister’s son, as heirs next after father’s father, but prior to father’s brother. This Act is since repealed by the Hindu Succession Act, 1956. 10. Child Marriage Restraint Act, 1929. This Act put restriction on marriage of children below the prescribed age. 11. The Hindu Gains of Learning Act, 1930. This Act made the entire acquisition by a Hindu through learning, his self-acquired property. 12. The Hindu Women’s Right to Property Act, 1937. This Act gave the right of inheritance to widows and to that extent affected the law governing a Mitakshara coparcenary. This was repealed by the Hindu Succession Act, 1956. 13. The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1944. This Act gave certain special rights to Hindu married women. This was repealed by the Hindu Adop- tions and Maintenance Act, 1956. Subject to the modifications made by legislation, the Hindu law continued to be the personal law governing the Hindus prior to and after India’s Independence on 15th August 1947. On the coming into force of the Constitution of India, with effect from 26th January 1950, the Hindu law as existing immediately before the commence- ment of the Constitution continued to be law by virtue of Article 372 of the Constitution. After the Constitution came into force certain radical changes have been brought about by the following enactments made in Par- liament. 1. The Special Marriage Act, 1954, providing for marriage by reg- istration. 2. The Hindu Marriage Act, 1956, providing inter alia for dissolu- tion and divorce after marriage on specific grounds. This Act has been further amended by the Hindu Marriage (Amend- ment) Act, 1976, providing for divorce by consent. 3. The Hindu Succession Act, 1956, providing inter alia for con- verting the limited estate of a woman under ancient Hindu law into an absolute one and providing equal share for daughters along with sons in the share of property of the Hindu father, in case of intestate succession.

4. Hindu Minority and Guardianship. Act, 1956. 5. Hindu Adoption and Maintenance Act, 1956.

Even with all these changes, on topics such as inheritance, suc- cession, marriage, gifts, partition, pious obligation, the old laws continue to operate subject to the legislative changes, and are en- forceable in courts of law.

(M.R.J.)